26 November 2014

Timor-Leste: Victims’ rights and independence of judiciary threatened by arbitrary removal of judicial officers, says Amnesty

ETLJB 26/11/2014 AMNESTY INTERNATIONAL PUBLIC STATEMENT Index: ASA 57/003/2014 21 November 2014

Decisions by the Timor-Leste parliament and government to arbitrarily terminate the contracts of foreign judicial officers and judicial advisors will have a negative impact on victims and their right to an effective remedy, said Amnesty International. The move also raises serious concerns about judicial independence in the country.

On 24 October, the Timor-Leste Parliament passed a resolution calling on the government as part of an “audit” of the judicial system to terminate immediately all existing contracts and contractual renewals of foreign judicial workers, including foreign judges, prosecutors, public defenders and judicial advisors. The resolution cited “national interests” as a basis for the termination and called into question the competence and integrity of foreign judges and prosecutors.

Shortly afterwards, and on the same day, the government issued a resolution terminating all existing contracts of foreign judicial officers on the basis of force majeure (Acts of God) and national interest. On 28 October, the President of the Court Appeals issued a directive to chief justices stating that the resolution had no legal effect and called on all foreign judges to continue their functions. However, three days later on 31 October the government issued another resolution ordering the Immigration Service to immediately revoke the work permits of eight foreign judicial officers and demanding that the individuals leave the country within 48 hours. All eight have since left. Furthermore, Amnesty International understands that all international judges and prosecutors have now also left the country.

Amnesty International is concerned that the sudden departure of judicial officers will have a significant impact on Timor-Leste’s fragile judicial system, which is already experiencing a backlog of court cases. In particular, the organization is concerned about the impact on victims whose cases will now be subject to retrials, and who now face further delays in accessing their right to an effective remedy. Amnesty International is also concerned that cases being retried include cases of domestic violence and sexual assault, which make up the vast majority of cases before Timor-Leste’s courts. Victims – mainly women and children – may be subjected to further traumatization and victimization if required to testify again in new court cases.

In addition to delaying access to an effective remedy for victims, Amnesty International believes that the actions of the Timorese Parliament and government amount to undue interference in the judiciary’s functioning and is in contravention of Timor-Leste’s Constitution. Article 119 guarantees the independence of the Courts, while Article 121 (3) states that “judges have security of tenure and, unless otherwise provided for by law, may not be transferred, suspended, retired or removed from office”. Judges can only be removed from office by the Superior Council of Magistrates and prosecutors by the Superior Council for the Public Prosecution.

Some local activists have raised concerns that the terminations may be linked to a number of corruption cases involving government officials or lawmakers that are being investigated or have been prosecuted or adjudicated by foreign judicial officers.

Amnesty International is also concerned that the removal of these judicial officers will undermine the prosecution of those accused of crimes against humanity and gross human rights violations committed in the context of the 1999 independence referendum in Timor-Leste. Foreign judicial officers with expertise in international criminal law have been involved in providing support for the investigation and prosecution of such cases over the last decade. The removal will also disrupt legal training in Timor-Leste, as some of those who have since left had been teaching at the Legal Training College.

Amnesty International urges the government and parliament to rescind their decisions to terminate the judicial officers so as to ensure the integrity of the judiciary as well the effective functioning of the judicial system in the country. Any decision to remove judges, prosecutors, or other judicial officers should be taken in accordance with procedures established in law, and subject to independent review.

Judges, prosecutors and public defenders, mostly from Portuguese-speaking countries, have formed part of Timor-Leste’s judicial system since independence in 2002. Others work as judicial advisers in with the Anti-Corruption Commission and the Judicial Training Centre.  

See also on ETLJB
Judicial Conference of Australia strongly condemns "most serious interferences with the independent and effective operation of Timor Leste’s courts and with the rule of law"
East Timor Government Continues the Destruction of Constitutional Democracy
Firing of Foreign Judges in Timor-Leste Threatens Justice System
FRETILIN Communique regarding the East Timor Parliamentary Resolution to Dismiss Foreign Jurists
Court of Appeal defies East Timor's Parliament resolution to terminate all foreign judges
East Timor's Parliament resolves to terminate all foreign judges
Parliament and Government must respect the independence of the judiciary and separation of powers
Judiciary under attack in East Timor
East Timor Government and Parliament fired Judiciary with missile resolution

24 November 2014

Judicial Conference of Australia strongly condemns "most serious interferences with the independent and effective operation of Timor Leste’s courts and with the rule of law"

ETLJB 24/11/2014 JUDICIAL CONFERENCE OF AUSTRALIA MEDIA RELEASE 12th  November 2014  Recent actions by the Government of Timor Leste

“Recent actions by the Government and Parliament of Timor Leste against foreign members of its judiciary are very concerning for the administration of justice in that nation” Justice Steven Rares, President of the Judicial Conference of Australia said today.

“The circumstances that led to the secret session of Timor Leste’s Parliament in late October 2014 that resulted in the dismissal of all foreign judges raise real issues about the integrity of the administration of justice in Timor Leste.  The lack of transparency itself is disturbing.”

“The constitutional processes of Timor Leste providing for the independence of the judiciary, security of tenure of judges and investigation of complaints against judges do not appear to have been followed.”

“Public confidence in the rule of law in a democracy depends on the judiciary being independent, unbiased, transparent and of unquestionable integrity.  The public of any sovereign state, such as Timor Leste, must be able to be confident that in the Court system, justice is not only done but should manifestly and undoubtedly be seen to be done.”

“Secret decision-making about judges and Court decisions outside of court and constitutional processes undermines public confidence in the judiciary, and that, in turn, undermines the rule of law.”

“The circumstances surrounding the resignation in February 2014 of the President of the Court of Appeals, Claudio de Jesus Ximines, also raise very significant concerns as to the independence of the judiciary, the observance of Constitutional provisions for protecting the rule of law and the separation of powers in that country.  Citing particular court decisions as the reason for appointing, assigning or dismissing judges inevitably raises concerns of political or other inappropriate attempts to improperly
influence judicial outcomes.”

“The Judicial Conference of Australia strongly condemns these most serious interferences with the independent and effective operation of Timor Leste’s courts and with the rule of law,” Justice Rares said.
-------
See also on ETLJB
East Timor Government Continues the Destruction of Constitutional Democracy
Firing of Foreign Judges in Timor-Leste Threatens Justice System
FRETILIN Communique regarding the East Timor Parliamentary Resolution to Dismiss Foreign Jurists
Court of Appeal defies East Timor's Parliament resolution to terminate all foreign judges
East Timor's Parliament resolves to terminate all foreign judges
Parliament and Government must respect the independence of the judiciary and separation of powers
Judiciary under attack in East Timor
East Timor Government and Parliament fired Judiciary with missile resolution

18 November 2014

Timor-Leste’s Justice Minister begins a program of meetings in Portugal with Ministers and Government Officials

ETLJB 18/11/2014 Government of East Timor Media Release Spokesperson 18 November, 2014 Díli, Timor-Leste - Timor-Leste’s Minister of Justice, H.E. Dionísio Babo Soares, has begun a series of meetings with Ministers and officials of the Government of Portugal in Lisbon. Yesterday Minister Soares met with his Portuguese counterpart H.E. Paula Teixeira da Cruz. The Minister is also to meet with the Prosecutor General of Portugal and provisionally, the Superior Council of Magistrates.

These meetings are focusing on the recent Resolution of the National Parliament of Timor-Leste which called on the Government to initiate a profound technical audit of the operation of the judicial system and to cease contracts with international actors working within the sector. A subsequent Resolution of the Council of Ministers regarding specific international actors required to leave Timor-Leste is also being discussed.

These two resolutions have understandably caused a great deal of concern within Portugal as nearly all of those impacted were Portuguese nationals.

In an extended interview with LUSA on the 5th of November Prime Minister H.E. Kay Rala Xanana Gusmao
appealed for understanding noting that there was “no intention to cool relations with Portugal” and indicated
that extraordinary and persistent problems within the judicial area had required extraordinary and urgent
action.

Although expressing regret over the way events had unfolded, the Prime Minister of Portugal H.E. Pedro Passos Coelho has affirmed the friendship of Portugal and Timor-Leste and the quality of his relationship with both the Prime Minister of Timor-Leste and the President of the Republic.
Justice Minister Babo Soares

Timor-Leste’s Government Spokesperson Agio Pereira noted that “Timor-Leste welcomes this opportunity for the Minister of Justice to dialogue with Ministers and officials of the Government of Portugal, to shed more light on these recent events.” He recalled the “deep historical relationship and solidarity of the two nations and the shared desire of both to see a strong, fair and efficient justice system at work in Timor-
Leste.”ENDS

Agio Pereira +670 77045002 agio.pereira@cdm.gov.tl govtlmedia@gmail.com www.timor-leste.gov.tl 


14 November 2014

Timor-Leste's Petroleum Fund Balance questioned by Lao Hamutuk

ETLJB 12/11/2014 According to a report by Macauhub on 11/11/2014 (http://www.macauhub.com.mo/en/2014/11/11/timor-leste-oil-fund-worth-us16-6-billion-in-september/) referencing a statement from the East Timor Central Bankissued on 10/11/2014, the value of the East Timor Oil Fund increased by just US$177 million in the third quarter due to payments to the state budget.

The Macauhub report states that "[a]ccording to the statement issued in Dili, the value of the Oil Fund was US$16.6 billion at the end of September....[and that] [f]rom July to September the Fund recorded US$522.35 million of gross inflows in contributions and royalties, and outputs amounted to US$345.35 million, including US$340 million in the form of transfers to the state budget.

The Timor-Leste Oil Fund, which was created in August 2005, receives all the state’s revenues from oil exploration.

Revenues for the fund are then invested in financial assets abroad and the only cash outflows are for the state budget, which must be approved by the national parliament.

However, the East Timorese civil society organisation that, among other things, monitors the oil and petroleum funds, the Macauhub article contains a fundamental error. According to Lao Hamutuk, the value of the Petroleum Fund actuall decreased during the third quarter of 2014, from USD $16.634 billion at the beginning of the quarter to $16.584 billion at the end of September.

According to Lao Hamutuk, the $50 million drop was because the Fund incurred net losses in foreign exchange of $276 million during the quarter, leading to an overall loss in investments of $232 million. When added to the $340 million withdrawn from the Fund to finance state activities, the losses exceeded the income from oil and gas.

More information on the Fund's performance, including the latest quarterly report from the Central Bank of Timor-Leste is made available by Lao Hamutuk at http://www.laohamutuk.org/Oil/PetFund/05PFIndex.htm.


06 November 2014

East Timor Government Continues the Destruction of Constitutional Democracy

ETLJB 06/11/2014 The Government of East Timor is continuing the deconstruction of constitutional democracy by passing a resolution to deport foreign judicial officers. The resolution was passed on 31 October 2014 following the resolution of the East Timor National Parliament on 24 October 2014 to immediately terminate all existing contracts of international judicial officers including international advisers appointed to the Judiciary, the Public Prosecutor's Office, the Public Defenders Office and the Anti-Corruption Commission.

Both of the resolutions by the Government and the Parliament are ultra vires and unconstitutional. They are unlawful acts by the legislative and executive organs of the State and constitute blatant attacks on the fundamental democratic doctrines of the independence of the judiciary, the separation of powers, the Constitution and the rule of law.

According to a Press Release today (06 November 2014) by the country's leading law and justice monitoring civil society organisation, the Judicial System Monitoring Program,  the Government resolution revokes the visas of five judges, two prosecutors and an official from the Anti-Corruption Commission, giving them 48 hours’ notice to leave Timor-Leste.

JSMP states that "[t]his resolution illegally orders international judicial officers to leave Timor-Leste... [and] violates the principle of judicial independence which is fundamental to Timor-Leste’s democracy and is enshrined in our Constitution,” said JSMP Interim Director Casimiro dos Santos.

The resolution by the Parliament triggered a constitutional crisis since it was immediately answered by the President of the Court of Appeal last week who issued a directive stating that only the Superior Council of Judicial Magistrates could remove judges from their positions.

“This [government] resolution directly challenges the legal opinion of the President of the Court of Appeal, who is the highest judicial officer in Timor-Leste,” said JSMP Interim Director Casimiro dos Santos.

JSMP believes that the Government’s new resolution ordering the deportation of these judicial officers is not consistent with the laws of Timor-Leste. Under the Constitution and laws of Timor-Leste, judges can only be removed from office by the Superior Council of Magistrates and prosecutors by the Superior Council for the Public Prosecution. These are the proper mechanisms established by law to deal with the appointment, removal and discipline of judges and judicial officers.

JSMP also expressed concern that the Government’s resolution is outside the limits of its constitutional powers. and believes that this resolution, as well as the earlier resolutions of National Parliament and the Government, constitute an interference with the independence of the judiciary and threaten the principle of the separation of powers.

JSMP also remains concerned about the serious impact this act will have on the justice system in Timor-Leste. The Suai and Baucau district courts have ordered retrials for some cases heard by international judges.

“Removing judges, prosecutors and other court officials creates more work for our justice system, and at the same time takes away important resources,” says JSMP Interim Director Casimiro dos Santos.

The National Political Committee of FRETILIN has issued a statement calling on the Government not to exceed the limits on its powers and urging the President of the Republic to ensure the normal functioning of State institutions.

JSMP urged the National Parliament, the Government and the President of the Republic to immediately take appropriate action to restore judicial independence.

ETLJB respectully agrees with the opinions expressed by JSMP, the communique from the FRETILIN National Committee and the Chief Justice's intervention. The actions by the Parliament and the Government are more characteristic of an authoritarian dictatorship than of a democratic State. While they may be compelled by the political agenda of the V Constitutional Government of East Timor, they are juridically erroneous and preposterous. ETLJB condemns the resolutions by the National Parliament and the Government as outrageous violations of democratic principles

In another breathtaking intervention clearly intended to thwart the rule of law and scotch efforts by the prosecution authorities to bring Members of Parliament to accountability for accusations of violations of the law, Prime Minister Xanana Gusmao is also reported by Tempo Semanal on 4 November to have written a  letter requesting the representatives of the people in Parliament to consider not waiving the immunity of members of his government who have been accused by the Public Prosecutor.

“Through this, with great respect, I ask your Excellency for the National Parliament to not waive the immunity of Government members until the end of their mandates pursuant to article 114 of the RDTL Constitution”, wrote Prime Minister Kay Rala Xanana Gusmao.

According to the Tempo Semanal report, the Prime Minister of the V Government wrote to the President of the National Parliament, Vicente Guterres, who is also facing charges by the Public Ministry. The letter was also sent to members of the Parliament’s chairmanship and the heads of every political group represented in Parliament on the 4th of November 2014.

The following extract from the letter was published by Tempo Semenal: “Considering the urgent nature of matters currently being followed up by members of my government. Considering that some members of my government have been prosecuted with penal charges regarding, alleged yet to be proven, acts performed during their official. Considering that if the National Parliament waives immunity of members of my government (as per article 111 RDTL Constitution) it will disturb the correct functioning and activities of the government, thus severely jeopardising the sustainability of the Government and the governance of the country. And, considering that national interest can only be safeguarded with a governing stability and the execution of all matters currently being followed up by the members of my government”.

ETLJB also condemns this intervention by the executive in the legislature that constitutes an offensive onslaught against the Constitution, judicial independence, the separation of powers and the rule of law in East Timor.

Written by Warren L. Wright BA LLB


See also
East Timor Government Continues the Destruction of Constitutional Democracy
Firing of Foreign Judges in Timor-Leste Threatens Justice System
FRETILIN Communique regarding the East Timor Parliamentary Resolution to Dismiss Foreign Jurists
Court of Appeal defies East Timor's Parliament resolution to terminate all foreign judges
East Timor's Parliament resolves to terminate all foreign judges
Parliament and Government must respect the independence of the judiciary and separation of powers
Judiciary under attack in East Timor
East Timor Government and Parliament fired Judiciary with missile resolution

East Timor's Prime Minister requests Parliament not to waive immunity for MP's accused by the Public Prosecutor of violations of the law

Xanana Gusmao
ETLJB 06/11/2014 From Written by  Tempo Semanal 04 Novembru 2014 19:14 Breaking News Dili, Tempo Semanal – Two days before the National Parliament convened the closed door plenary session that resulted in the PN resolution numbers 11/2014 and 12/2014 on the 24th October 2014, the Prime Minister of the V Constitutional Government wrote a letter requesting the representatives of the people in Parliament to consider not waiving the immunity of members of his government who have been accused by the Public Ministry.

“Through this, with great respect, I ask your Excellency for the National Parliament to not waive the immunity of Government members until the end of their mandates pursuant to article 114 of the RDTL Constitution”, wrote Prime Minister Kay Rala Xanana Gusmao.

The Prime Minister of the V Government wrote to the President of the National Parliament, Vicente Guterres, who is also facing charges by the Public Ministry.

 The letter from the Prime Minister was received in the office of the President of Parliament on the 22th October 2014, at 17:30 TL time, and was sent to members of the Parliament’s chairmanship and heads of every political group represented in Parliament on the 4th of November 2014.

In his letter to the President of the National Parliament, the Head of Government gave various justifications for the National Parliament to not waive of immunity for the current members of his Government.

“Considering the urgent nature of matters currently being followed up by members of my government. Considering that some members of my government have been prosecuted with penal charges regarding, alleged yet to be proven, acts performed during their official. Considering that if the National Parliament waives immunity of members of my government (as per article 111 RDTL Constitution) it will disturb the correct functioning and activities of the government, thus severely jeopardizing the sustainability of the Government and the governance of the country. And, considering that national Interest can only be safeguarded with a governing stability and the execution of all matters currently being followed up by the members of my government”. This is how PM Xanana argued his request in the letter of 22/10/2014.

In ending, the Prime Minister respectfully hopes “… that this request deserves a positive response from Your Excellency, I sign with highest consideration”. Source: http://www.temposemanal.com/nasional/pm-xanana-asked-the-national-parliament-not-to-waive-the-immunity-of-members-of-the-v-government 

Image added by ETLJB

04 November 2014

FRETILIN Communique regarding the East Timor Parliamentary Resolution to Dismiss Foreign Jurists

ETLJB 04/11/2014 From th Fretilin National Political Committee -The National Political Committee of FRETILIN met extraordinarily on 3 November 2011, chaired by the President Francisco Guterres Lu-Olo and co-chaired by the party General Secretary Dr. Mari Alkatiri. The meeting also took in the participation of the National Caucus of FRETILIN Members of the National Parliament.  After discussing at length the current political-institutional situation in Timor-Leste, and, after a detailed and thorough analysis, the NPC declared as follows: 
FRETILIN reaffirms: 

1.         The party’s unequivocal and determined position of intransigently defending the Democratic Rule of Law with all the values and principles enshrined in the Laws and Constitution of the Democratic Republic of Timor-Leste (“RDTL”).

2.         Its willingness to continue contributing to the development of the capacity of State institutions, particularly the constitutional sovereignty bodies.

3.         Its clear position that the principle of solidarity and interdependence in the functioning of the constitutional bodies and must be understood within the framework of the principle of respect for each body’s powers as defined in the Constitution of the RDTL.

 4.         That the political and legislative constitutional sovereignty bodies, in their acts, should prioritize the strengthening of their own capacities and in the enactment of laws and regulations.  In their actions they should also manifest their concern to ensure that the legal framework is in harmony, is clear and easy to interpret, and an administration that acts within its powers and where a high degree of justice a Good Governance prevails.

5.         The President of the Republic should assume his functions in a way that safeguards the Constitution and the normal functioning of the institutions of the State and not permit that there is interference by one constitutional sovereignty body with another.

6.         That the Courts, the Public Prosecution Office, the whole system that has to exercise judicial functions have the right to demand of the Political Constitutional Sovereignty Bodies the necessary means and resources to allow them to discharge their functions with independence and competence.

7.         That the Courts, the Public Prosecution Office has available the respective Superior Councils to act, on their own initiative, or by way of a request from other Constitutional Sovereignty Bodies or the citizenry to proceed with any inspections or audits regarding the internal functioning and to take appropriate disciplinary decisions to correct any errors made.

 The National Political Committee of FRETILIN:

A. Considers that institutional fragility is a universal reality with respect to all institutions, and it should not be expected that the justice system be an island amidst an ocean of ineffectiveness and inertia and mismanagement of the abundance nation has, and abuse of power that, in the end, will end up causing political, economic and social damage for the whole country and of the inappropriate appropriation of the public funds;

B. Thus, considers it urgent to prioritize the restructuring and readjustment of all public institutions, developing a policy of training and capacity building of the human resources and of the institutions themselves;

C. Considers it extremely urgent that the National Parliament approve new standing orders that regulates its functioning so as to make the National Parliament authentically representative of the will of the people and the nation, and truly independent;

D. Also considers it urgently necessary that there be a reshuffle of the Government so as to make it smaller and more competent in the implementation of the Plans and Programs to better serve.
As regards the Courts, the Public Prosecution Office and all the institutions that have been empowered to exercise judicial functions, FRETILIN believes that:

I.          That this sector of the highest importance needs greater attention from the whole of the State to make it more capable of exercising its functions, subjugating itself only to the Constitution, the laws and the conscience of its professionals.

II.         No other Constitutional Institution should consider itself to have the right to intervene in matters regarding the internal organization of the sector, especially, with the Courts and the  Public Prosecution Office, lest this place the political system and Democratic Rule of Law at risk.

Thus, FRETILIN: 
a.         Makes an urgent appeal to the President of the Republic to take up his constitutional role and ensure the normal functioning of the Constitutional Sovereignty Bodies and State institutions.

b.         Demands that the National Parliament stop purporting to deliberate on issues that have nothing to do with their powers as embodied in the Constitution.

c.         Urges the Government and the Prime Minister not to exceed the limits of their powers and to support the Justice Sector, and to avoid making decisions that simply contribute to inhibit the justice professionals and that causes institutional conflicts. Dili, on November 3, 2014.

THE  NATIONAL POLICY COMMITTEE OF THE FRETILIN

Further information may be sought from Harold Moucho, on +670 7732 6984 
----
See also

Veteran's payments in Timor-Leste - a source of conflict?

ETLJB 04/11/2014 From Belun's Early Warning, Early Response Program September 2014 - This policy brief is a condensed version of Belun's 2012 report, The Social Impact of Veterans Payment Processes, and has been fully updated with new information and recommendations.

The question of how to recognize those who participated in the resistance movement is both sensitive and essential for Timor-Leste. The government must balance multiple priorities, responding to the needs of various groups and their competing demands. Indeed, providing recognition for those who fought for independence must be tempered with the provision of broad-based social assistance to the entire population. In Timor-Leste, the disarmament and demobilization of former resistance members is nearly complete, but reintegration remains a protracted process. Since 1999, the Timorese government has sought to address this issue and develop policies to address the needs of its veterans.

Beginning with the first constitutional government, and through multiple rounds of policy development and revision, Timorese legislators have made considerable progress in attending to the needs of National Liberation Combatants (CLNs), through the elaboration of a channel for social assistance to veterans and providing recognition to those who participated in the armed front. However, challenges and tensions have emerged in relation to the payment system and the public’s limited understanding of the social assistance laws.

Furthermore, the pension program has created new divisions and conflicts among community members, since some individuals have received considerable amounts of money while others continue to wait for medals and pensions. A significant issue has also arisen around whether those receiving payments are recognized as legitimate beneficiaries by their communities.

With these issues in mind, Belun believes that practical and straightforward initiatives can help to ease tensions and better prepare communities and families to respond to disputes arising from veterans' social assistance payments. Recommendations include improving the public's understanding of the veterans' law, finding creative solutions for distributing veteran's payments and developing tools to deal with problems of social jealousy. Source: http://belun.tl/wp-content/uploads/2014/09/Policy-Brief_-VETERANS-PAYMENTS_Final_31-August-2014.pdf

East Timor Government and Parliament fired Judiciary with missile resolution

East Timor Parliament
ETLJB 04/11/2014 - Dili Tempo Semanal- The President of the Court of Appeal has notified Judge Administrators of Districts Courts to not discuss further the Parliament resolution number 11/2014 and more importantly the President of the Court of Appeals has issued a letter ordering the courts not to obey National Parliament Resolution number 11/2014 and Government Resolution number 29/2014, of the 24th/10/2014.

“According to the law, article 18, e) law number 11/2014, 29th of December (regarding estatuto dos Magistrados Judiciais – Status of the Judges) and article 18,  number 2, 26, 41, 55, 60, 72 and 82 from decree law number 19/2012, 25th of April (regarding Court Officials) notifies the Judicial Officers and International Judges to continue with their duties”, The President of the Court of Appeals, Dr. Guilhermino da Silva said in his letter which was also sent to the Parliament and the Government who also tried to invade the judicial area with their resolution 11/2014.

In his letter of 28th/10/2014, Dr. Guilhermino da Silva explained that, only the Superior Council of the Magistracy has the power to choose, transfer or to dismiss Judges, court officers and also to appreciate their professional merits or to take disciplinary actions, therefore the National Parliament Resolution number 11/2014 of the 24th October has no practical effect more so Government Resolution number 29/2014, on the 24th of October 2014”.

Sources in the Court of Appeals told Tempo Semanal that the President of the Court of Appeals received a letter from the Prime Minister in office, asking to have a debate on Television about the matter.

The President of the Court of Appeals who is also the President of the Superior of the Magistracy (KSMJ), has notified all concerned not to implement the resolution from the Government and the President of the Court of Appeals is contesting the said Resolution.

“Timor –Leste can change whoever it wants, or sack anybody because of national interest of this country, we can do everything but it must be according to the constitution and law. Now the resolution says to immediately terminate the Judges and the court Officials within twenty four hours, but for this we need to appreciate the position of Dr. Duarte Tilman whom does not agree with this. This Judge said he does not agree with this because it has to do with firing all this people and then people say Government members, there are a lot of cases, and there will also be accusations of an invasion of the Parliament and Government on the Judiciary”.

Agusto Ximenes, a youth from Bekora; “If it is an official, we can change, if something is wrong here we can change, if human resources is insufficient then we can fix it but it has to follow rules this does not follow rules. The constitutional rules say that only the Superior Council of the Magistracy can replace a judge, sack a judge and select a judge, it is not done with a resolution”, from a member of KAK, CAC (Comisao Anti Corrupcao –KAK): “Sovereignty organ of the Nation of Timor-Leste specially the V Constitutional Government and the National Parliament may have jumped many articles of the RDTL Constitution because it used political missile weapon resolution to squash judicial sovereignty organ in a democratic rule of law TL”.

“The Courts use article 120 of the Constitution which states that the courts shall not apply laws that is against the Constitution and this principle is enshrined in the Constitution. If the court can’t apply the laws that are against the constitution then lets’ not go there with a resolution”, said a defense lawyer to Tempo Semanal.

“For me if the Government and the Parliament use a resolution to fire Judges, Prosecutors, Defense Lawyers and KAK system then it shows clearly that Government and Parliament are starting to disrespect the mechanisms that they set in the constitution specially article 118 and other articles regarding the sovereign judicial organ”, he explained.

“I have said the National Parliament has the power to make laws, to check, to make political decisions, without a doubt. But the laws that are made must not be against the constitution and the principle enshrined in it. If it is against it then Judges must not use it, if they do then that is when everybody runs a mock against the constitution”.

“To stop immediately this then freezes the organs that have the competency to discipline, change, select and to inspect those Judges. Once more to select Judges, replace Judges and to solve these issues is not up to the Parliament through its members, only the Superior Council of Magistracy can, through its members or representatives. When there is no separation of powers then the constitution no longer exists. Without separation of powers there is no constitution” stressed another judicial member.

“To ensure the rule of law it is not just to write it down in paper or in a book to read or to speak with beautiful and colorful words it must be put into practice. It is not only in theory but once it is written down then it must be put into practice. When the courts and judges obey resolution 11/2014 then Timor-Leste becomes a state of power and not a state of law. This means that the Government rules all”.

On the other hand, a Timorese law student who is finishing his laws studies in a University in Dili, said the Government and the National Parliament use their power to make a resolution to violate the constitution and he observed that the Government did not ask the Public Ministry for their views so he questioning why the Government ignored the Public Ministry and trusted international lawyers more and forgot to ask the Public Ministry as the defenders/advocates of the Timor-Leste’s Nation for any legal advice.

“I see that this Government has done its things without dialog with Public Ministry that is why the resolution has gone to the wrong address. The root of the problem is that at times the Public Ministry is not aware of these contracts. The main problem is when the contracts are made. What is wrong is what is in these contracts.  The Government Lawyer does the contracting then does the contract and after blames the Public Ministry”, said law student A. X. da Silva.

FRETILIN Member in Parliament David Mandati Dias Ximenes voted in favor of the 12/2014 resolution regarding the defense of national interest in which empowered the Government to establish a team to negotiate the Timor Sea Boundaries with Australia, but he voted against National Parliament resolution 11/2014 to empower the Government to audit the judicial system in Timor-Leste  saying that he does not agree with NP resolution 11/2014 because it violated the RDTL constitution  specially article 69 of the RDTL constitution were it defines the separation of powers including articles 118, 119, 120. 121 and 128 were it refers to the sovereign judicial organ of RDTL.

“This resolution should have been null and void because on the 24th/10/2014 there was only one agenda and that was to meet with the Prime Minister and there was no other agenda regarding debate or voting this resolution. We the Parliamentarians ourselves are violating our own National Parliament internal regiment,” said David.(end) Source: http://www.temposemanal.com/nasional/government-parliament-fired-judiciary-with-missile-resolution-ksmj-opposes 

See also
Court of Appeal defies East Timor's Parliament resolution to terminate all foreign judges
East Timor's Parliament resolves to terminate all foreign judges
Parliament and Government must respect the independence of the judiciary and separation of powers
Judiciary under attack in East Timor 

01 November 2014

11 Cases of domestic violence from 13 cases heard by the mobile Baucau court in Manatuto District in August 2014

ETLJB 01/11/2014 From JSMP Press Release 4 September 2014 -  From 25 to 29 August 2014 the Baucau District Court operated a mobile court in Manatuto District. The mobile court heard 13 cases, of which 11 involved domestic violence. The other two cases involved the misuse of authority and driving a vehicle in a dangerous manner. However, the court only tried 12 cases and the remaining case which involved domestic violence was adjourned because the defendant was not present.

From those cases that were heard, 9 cases involving domestic violence were decided and the defendants received suspended prison sentences. In one case the court amended the charges from the crime of simple offences against physical integrity, as provided for in Article 145 of the Penal Code, to the crime of mistreatment of a spouse under Article 154 of the Penal Code. The hearing to announce the decision in this case was set for 3 September 2014 at the Baucau District Court.

“JSMP values all initiatives to bring justice closer to the community in isolated areas via the mobile court to facilitate public access and to reduce the number of cases awaiting trial. Nevertheless, JSMP encourages the courts to choose penalties that have the power to deter the same crimes from occurring in the future,” said the Executive Director of JSMP, Luis de Oliveira Sampaio.

JSMP has observed that in both the mobile court and the district courts, the majority of cases being heard involve domestic violence.

JSMP suspects that it is possible that members of the community are not afraid to commit violence because the penalties handed down in cases of domestic violence are not serious and the defendants do not feel that they have been punished when they received a suspended prison sentence. JSMP recommends to the courts to reconsider the sentences which are applied in cases of domestic violence.

The mobile court was presided over by judge Antonio Fonseca. The public prosecution service was represented by Luis Hernani Rangel da Cruz and Grigorio de Lima from the Office of the Public Defender.

The mobile court was conducted with the financial support of UNDP.

Creation Policy of the Science Police Criminal Investigation (SPCI) Partner and Threat for the Security Institution

ETLJB 01/11/2014 From Fundasaun Mahein - In the beginning of 2014, Timor-Leste has passed a decree law with the scientific character in the criminal investigation’s area. This decree law is about No. 15/2014 on 14 May, of the organic law of the science police criminal investigation. Therefore, SPCI is organized based on the hierarchy at the justice ministry’s shade, and supervise by the Public ministry. In this scope, the SPCI becomes the superior corps of the criminal investigation police that will enjoy the administrative autonomy, financial and heritage.

Why this creation policy of the institution consider as partner or threat? Because of the competencies that attributing to SPCI, in other side completes the services that still complicated thus far. As cited on this decree law that SPCI will only do the investigation for serious crime, organized or the complicated cases. Therefore, on the other side it becomes threat. The creation of SPCI will work double of the services that done by the criminal investigation department thus far such as the National police of Timor-Leste (PNTL), that should be based on the public ministry’s system based on the penal code order of Timor-Leste, so considering that the creation of SPCI is like the policy over position.

In other scope, the SPCI gets especial privilege and treatment, but work for the same issue. Regarding this there will be have another thought that many institutions will work for the same issue, will not motivate and compete  among others and will increase the state’s expense, including the investment for the criminal investigation will not concentrate and prejudice to their professionalism. Ironically, those graduates at the SPCI just getting the training within several months then immediately guardianship to the complexity or organized and serious crime cases.

Lastly, the SPCI will utilize weapon as well if the circumstance consider in a risk that is serious and in a big threat for public safety. FM really doubt with this circumstance, because of a long history about utilizing weapon in Timor-Leste that is concerned by the whole society. As an example misused by the security authority, make some innocent people become victims and about the final process have not finished yet at this day. So, the management and the controlling system over the weapon have not got well threaten yet. The national media reports and the community’s concerns that, some weapons of the security authority have used wrongly as well as the individual member that used for hunting.

Recommendations

1. Recommends to the National parliament, Committee A needs to make fiscal for those producing of laws and their implementation.

2. Recommends to the National Parliament and the government needs to create legislation of the criminal investigations, that should define for the mission, attribution and competencies that attributing to each institution, so it will define clearly the action terms based on each naturally and mission.

3.   Recommends to the National Parliament and government over the draft laws that have been produced needs to have a clear consultation with the all society entities of Timor-Leste, so it can be reflected to the reality or the nature of Timor-Leste. Source: http://www.fundasaunmahein.org/2014/09/25/politika-krisaun-polisia-sientifika-investigasaun-kriminal-psik-parseiru-no-ameasa-ba-instituisaun-siguransa/ 

Timor-Leste is in a Dangerous Situation from Drug Transactions and Weapons

ETLJB01/11/2014 From Fundasaun Mahein - Fundasaun Mahein has become aware of organized crime networks in Timor-Leste in the last couple of years. As explained in reports spanning from 2010 to 2014, these networks have taken many forms, and they have utilized Timor-Leste as a distribution hub. These networks have brought drugs here both in transit to neighboring countries and also for distribution here in Dili city.

FM’s monitoring has shown that the drugs have been transported by air, sea, and land from the directors of these organized crime networks. Lately, crime syndicates are utilizing import/export agencies to move goods in and out of Timor-Leste. Interestingly enough, security authorities in Timor-Leste have also detected a machine that is used to produce and process drugs from abroad before distribution. This seems to signify that Timor-Leste is not only a transit place but also a center for drug production as well.

These networks have involved Timorese citizens, foreign expatriates living here in Timor-Leste, and even tourists. The security authors have identified that theguilty foreign citizens are workers in private enterprises in Timor-Leste. The leaders of these enterprises have been deemed guilty of involvement in these networks. After being sent to preventative prison, some of these individuals have escaped and remain on the run, hidden from the public eye.

During the operation carried out in 2014, the security authorities captured the drug crimeboss on 5th September 2014 in Dili. This success was the result of a conjoint operation between the military and police information services. The operation continued on 14 October 2014, at which point security actors confiscated some drug items, such as methamphetamine (sabu-sabu), cocaine, and ecstasy from the residence of Suspect “A” in Dili. The individual is the same boss captured initially on September 5th, 2014.

During the operation, the security authorities found a machine that is used to producedrugs. These drugs are transferred here from abroad, processed with this machine, and then distributed both at home and abroad. The operation team also found pistol bullets in a box with security equipment at the suspect’s residence. However, these authorities just acquired the bullets and not the type of the pistol itself. FM suspects that weapons still exist, because these bullets are used for pistols and other weapons. These bullets have not yet indicated their place of origin. Where did they come from? Do they belong to old pistols that were distributed in 1999 by militias?  Or do they belong to the missing pistols ofthe 2006 police crisis?

FM views that Timor-Leste is now facing dangerous situation, because the authors of this organized crime are not only involved in drug transactions but also use illicitweapons. FM worries that these criminal activities could leave Timor-Leste in an uncontrolled situation. Criminal networks could even recruit security actors, who at present lack conditions, resources, and some necessities of life.

The organizedcrime networks are increasing, while security authorities face limitations in facilities, equipments, and finances. As stated by many national leaders through the media, detecting these criminal activities is not easy. Even more difficult and more complicated still is the process of acting against them.

Therefore, FM recommends that the government and the security authorities share intelligence information with other countries in the region regarding these organized crime networks that pose threats to each nation in the region.

FM recommends that the government and the security authorities fortify the control systems at airports, ports, and land borders, because these criminal networks are currently operating at through these points.

FM recommends that the government invest a greater percentage of intelligence services in certain areas, such as organized crime detection and criminal investigations.

FM recommends that the government accelerate its discussions regarding drug laws, so that they may be put into action by the Ministry of Justice. Source: http://www.fundasaunmahein.org/2014/10/16/timor-leste-iha-perigu-boot-ba-transaksaun-droga-no-kilat/

Summary of the trial process at the Oecusse District Court May 2014

ETLJB 01/11/2014 From the East Timor Judicial System Monitoring Program 14 August 2014 - Introduction

In May 2014 JSMP continued to conduct monitoring of trials at the Oecusse District Court. During this period JSMP observed 7 cases from a total of 21 cases that were tried at the Oecusse District Court.

6 of these 7 cases involved simple offences against physical integrity characterized as domestic violence and the other case involved simple offences against physical integrity. From these seven cases, 1 case of domestic violence resulted in a penalty of 1 year in prison, and in 4 cases the court issued a fine. The other two cases are still ongoing.

JSMP observed that the Oecusse District Court continues to make positive steps forward in its handling of cases involving domestic violence. The court sentenced a defendant to 1 year in prison for committing the crime of domestic violence against his wife while the defendant was serving a suspended sentence. This decision is a positive step forward in implementing the Law Against Domestic Violence. JSMP believes that this decision can have a deterrent effect on the defendant and for the community in general.

Nevertheless, JSMP notes that the court continues to issue fines in cases of domestic violence which has been a concern for some time. JSMP believes that a fine is not the appropriate penalty in cases of domestic violence because it will place a financial burden on the family.

The information below outlines the cases observed:

Court of Appeal defies East Timor's Parliament resolution to terminate all foreign judges

ETLJB 01/11/2014  From Suara Timor-Lorosae President of the Court of Appeal (Chief Justice) Issues Formal Instructions to Courts, International Judges to Continue Serving on Bench Until Decision of Superior Council of Judiciary - Courts today (28/10/2014) today received official communication from the President of the Court of Appeal, that all international judges were to continue to exercise their functions in the Dili, Suai, Baucau and Oecussi District Courts.

According to the Dili District Court Judge Administrator, Duarte Tilman Soares, on 28 October last the Courts received formal instructions from the President of the Court of Appeal (the highest judicial post in the country) that international judges are to continue to exercise their full judicial functions in the court they have been appointed as usual, until the Superior Council for the Judiciary (SCJ) has deliberated on the issue of the parliamentary resolution regarding the justice sector.

 “The international judges will continue to exercise their judicial functions based on the contracts they entered into with the SCJ.  Whether they will be removed from their positions or not, that will be a matter for the SCJ to determine. The President of the Court of Appeals letter invoked article 18, line e of law number 11/2004 of 29 December (the powers and functions of Judicial Officers), as well as article 18, number 2, 41, 55, 60, 70 and 82 of decree law 19 of 2012,” Tilman told journalists during an interview at the Dili District Court.

However, the Director of the Legal training Centre Marcelina Tilman da Silva, the Parliamentary and Government resolution, has resulted in all training staff stop work, and they have handed in all their equipment and materials.  Source: http://suara-timor-lorosae.com/tribunal-simu-ofisio-do-presidenti-tribunal-rekursu-ji-kontinua-servisu-hodi-hein-desizaun-ksmj 

See also
East Timor's Parliament resolves to terminate all foreign judges
Parliament and Government must respect the independence of the judiciary and separation of powers
Judiciary under attack in East Timor

Firing of Foreign Judges in Timor-Leste Threatens Justice System

ETLJB 01/11/2014 I From The Asia Foundation 29 October 2014 By Susan Marx - In a dramatic challenge to the principles of democracy, on Friday night, the parliament of Timor-Leste decided in a closed session to fire all foreign judges and advisers in its justice system. The National Parliament passed Resolution No. 11/2014, calling on the government to audit the justice sector and immediately terminate all existing contracts of at least 11 international judges and prosecutors, as well as other international staff in the Courts, Public Prosecutor’s Office, Public Defender’s Office, Anti-Corruption Commission, and the Legal Training Center. In response, the government quickly passed Resolution No. 29/2014, an echo of Resolution No. 11. The stated legal basis for the resolutions was force majeure and “national interest” – but it’s unclear whether either is applicable in this case.
Timor-Leste's Parliament

On Friday, Timor-Leste’s National Parliament passed a resolution to terminate all foreign judges and advisers in its justice system, opening a debate over the legality of the resolution and the future of Timor’s independent judiciary. Photo/Conor Ashleigh

While the legality of the resolution is being questioned by a range of political and judicial figures, the act of the resolutions from the parliament and the government clearly undermines the principles of an independent judiciary. There is deep speculation over the meaning of the resolution, but the response seems to be conflating a number of issues. On the one hand, some are interpreting this as an overreaction to the unfavorable outcomes in a number of pending cases between the government of Timor-Leste and the oil giant ConocoPhillips on matters pertaining to the taxation of oil revenues. Some say it is a case of “face saving,” given that much of the assessments of the outstanding taxes allegedly due to the government in the first place were in fact calculated by the government’s own ( recently arrested) foreign advisor to the Ministry of Finance. Analysts point to Prime Minister Gusmão’s growing dissatisfaction toward the country’s public prosecutors and anti-corruption body (KAK) as a possible motive for the blunt move.

Compounding the mystery surrounding the developments, the Minister of Finance, Emilia Pires (a close ally of Prime Minister Gusmão), recently returned to Timor-Leste after spending months abroad, including missing the last two budget debates. Coincidentally, news recently surfaced that her immunity from prosecution for a corruption allegation would not be lifted anytime soon.

Certainly, no one would argue that the legal system had been functioning perfectly, and that having a large dependency on foreign judges, lawyers, and advisers to run the system was ideal. But initiating an impeachment of high court officials (foreign or otherwise) sends a clear message to all justice actors – particularly national judges. As such, despite a growing sentiment that other recent detentions of foreigners could signal a general dissatisfaction with expats, or malae, the main concern should be about the legality and not the nationality involved in the matter.

The legal basis for this decision is shaky at best, and likely unconstitutional. The Constitution of the Democratic Republic of Timor-Leste protects the principle of separation of powers (Article 69), guarantees the independence of the courts (Article 119), and ensures tenure to judges (Article 121.3). In other words, neither the parliament nor the government can legally fire these judges – the power lies only with the Superior Council of the Magistracy. For those affected who are not judges, prosecutors, or public defenders, depending on the types of contracts, other applicable legislation including the Labor Code and contract law would still apply, neither of which were invoked.

The government has not made a valid case for “national interest,” nor for a force majeure, which is generally utilized for unforeseen circumstances such as war, riot, natural disaster, strike, or so-called “acts of God.” Civil society have come out strong against the apparent interference with the justice sector. Notably, the justice monitoring civil society organization, JSMP, held a press conference“urging the national parliament and government to reconsider these resolutions and immediately take appropriate actions to guarantee the independence of the judiciary.”  Leading human rights activist, Jose Luis de Oliveira, in turn wrote this article in which he questions both legal justifications cited by the resolutions (force majeure and national interest) and alleges that the secret plenary was in fact the second meeting, that it was preceded by a private meeting attended by some parliamentarians at the prime minister’s residence.

So far, what is known is that only a handful out of the 25 MPs of the opposition party, Freitilin, voted in favor of the resolution, and the others that didn’t vote for it have spoken out publicly on the appearance of “ interference with the justice system.” According to local civil society organizations familiar with the events, the chief justice of the Dili District Court has publicly stated that the resolution is not legal, and the president of the Court of Appeal has said the resolution has no legal standing.

Beyond the immediate administrative impact that removing 11 international judges and prosecutors and delaying formal training of new Timorese magistrates could have on a notoriously backlogged legal system, there are also more far-reaching implications for Timor-Leste. One is the implied threat to national judges. Second is that detention of foreign consultants and summary dismissal of members of the judiciary threatens foreign investor confidence – something desperately needed if Timor-Leste wants to wean itself off its oil dependency. The government is in the middle of a number of major investment projects ranging from a $350 million cement plant to upgrading of major transport infrastructure, and this move could seriously hamper confidence of potential investors. Third, the decision could threaten the government’s case for ASEAN accession. The government may have inadvertently given Singapore, the staunchest opposition to Timor’s bid to join the group, enough ammunition to continue blocking its admission. And finally, in the wake of a recent onslaught on media freedoms, this interference with the justice sector begs the question: As one of the remaining pillars of democracy in Timor-Leste, is civil society next?

*Editor’s note: This version has been edited slightly from the original.

Susan Marx is The Asia Foundation’s country representative in Timor-Leste. She can be reached at susan.marx@asiafoundation.org. The views and opinions expressed here are those of the individual author and not those of The Asia Foundation. Source: http://asiafoundation.org/in-asia/2014/10/29/firing-of-foreign-judges-in-timor-leste-threatens-justice-system/

See also
East Timor's Parliament resolves to terminate all foreign judges
Parliament and Government must respect the independence of the judiciary and separation of powers
Judiciary under attack in East Timor

2015 State General Budget for the Community Police Needs Political Support from the National Parliament

ETLJB 01/11/2014 From Fundasaun Mahein 30/10/2014 At the end of 2013, Fundasaun Mahein published a report entitled “The Basis of the Community Police Practice,” which discussed the services of community police and the Official Village Police (POV).

However, these initiatives, which involve community police services in 13 districts, have not yet received maximum attention from the government. The allocation of funding is still lacking, so the activitied of the community police in districts and villages still face various limitations in facilities, equipment, and training resources for member.

The government has submitted its proposed State General Budget to the National Parliament on October 2014, and this proposed budget will be discussed by each relevant commission of the National Parliament. Fundasaun Mahein views this proposal (2015 SGB) as evidence that the government is attentive to the funding needs of the community police. Moving forward, FM trusts that the national parliament will consider the difficulties and successes that community police have faced in the field thus far.

In mid-2014, the General Commander of the National Police of Timor-Leste (PNTL) and the supporting organizational donors for the community police held a workshop in Dili. This workshop discussed the various services of the community police. During the workshop, the donors presented a preliminary report, supported by an evaluation team that visited community police in villages, which explained that these posts are still facing shortages in the basic materials, such as facilities, equipment, and training resources, necessary to perform community police duties.

Through regional visits and discussions with community leaders, FM’s monitoring efforts have identified that these police face many problems, such as facilities, equipment, and lack of acknowledgment. Despite these shortages, whoever, the community police have achieved some successes.

As suggest above, FM believes that, in order to reach the strategic aims of the PNTL Strategy Plan for 2014-2018, the community police initiatives need support from the government and the national parliament. In particular, these initiatives need support for the action plan outlined in the proposed 2015 SGB, which would take effect in early 2015.

According to the PNTL Annual Plan, written in the proposed 2015 SGB, the community police will develop technical capacity and professionalism, as members of the PNTL, through internal training. Community policing activities will continue to provide training to POVs in villages, training for technical communication with POVs in villages, and training for volunteer security youth of villages in 13 districts. As such, these police members will play a profound role in social interactions and social psychology within these communities.

FM believes that these activities embody the philosophy of the PNTL, as well as the PNTL strategy Plan for 2014-2018, by adopting the ‘VIP Doctrine,’ which asks PNTL members to be ‘Visible, Involved, and Professional.’

FM believes that the National Parliament is well acquainted with the problems and successes of the community police initiatives thus far. Furthermore, FM believes that the National Parliament shares its concern for the visibility and policy adherence of community police in the field.

Recommendation:

1. The national parliament committee B should support policy and the allocation of funding for community police services in the upcoming budget discussion

2. The national parliament must supervise the implementation of funds by the community police, if these funds are granted. Source: http://www.fundasaunmahein.org/2014/10/30/proposta-orsamentu-jeral-estadu-oje-2015-ba-polisiamentu-komunitariu-presiza-apoiu-politika-husi-parlamentu-nasional/
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